No. 07-______

IN THE SUPREME COURT OF THE UNITED STATES

BRIAN T. O’MALEY, PETITIONER

v.

THE STATE OF NEW HAMPSHIRE

ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF NEW HAMPSHIRE

PETITION FOR A WRIT OF CERTIORARI

PETER K. STRIS JEAN-CLAUDE ANDRÉ RADHA PATHAK Counsel of Record MARTIN H. PRITIKIN SARAH E. ANDRÉ Whittier Law School Ivey, Smith & Ramirez 3333 Harbor Blvd. 2602 Cardiff Ave. Costa Mesa, CA 92626 Los Angeles, CA 90034 (714) 444-4141 (310) 558-0932 SHAUN P. MARTIN PAUL J. GARRITY University of San Diego 14 Londonderry Rd. School of Law Londonderry, NH 03053 5998 Alcalá Park (603) 548-5298 San Diego, CA 92110 (619) 260-2347 BRENDAN S. MAHER 5707 Swiss Ave. Dallas, TX 75214 (214) 736-4524 November 2007

i

QUESTION PRESENTED

This case presents the Court with an ideal opportunity to

resolve an important question of constitutional criminal

procedure that has resulted in a widely acknowledged and

intractable 5-4-4 split among 13 state courts of last resort and

federal courts of appeals. The Question Presented is:

Whether hearsay statements regarding the collection or

testing of forensic evidence made in anticipation of prosecution

are “testimonial” and, therefore, subject to the Confrontation

Clause demands enunciated in Crawford v. Washington, 541 U.S. 36

(2004).

ii

TABLE OF CONTENTS

Opinion below...................................................1 Jurisdiction....................................................1 Constitutional provision involved...............................1 Statement of the case...........................................2

A. Legal and factual background..........................2

B. Procedural History....................................6 Reasons for granting the petition..............................12

A. There is a widely acknowledged, deep, and intractable three-way split over the question presented............................................12

B. The conflict over the question presented is

untenable............................................17 C. This case is an ideal vehicle for resolving the

question presented...................................27 Conclusion.....................................................31 Appendix.......................................................1a

iii

TABLE OF AUTHORITIES

CASES:

Commonwealth v. Carter, --- A.2d ---, 2007 WL 3015622 (Pa.

Oct. 17, 2007) ..............................................14 Commonwealth v. Melendez-Diaz, No. 05-P-1213, 2007 WL

2189152 (Mass. App. July 31, 2007), pet. for cert. filed Oct. 26, 2007 (No. 07-591) ..................................29

Commonwealth v. Verde, 827 N.E.2d 701 (Mass. 2005).........14, 29 Crawford v. Washington, 541 U.S. 36 (2004).................passim Davis v. Washington, 126 S. Ct. 2266 (2006).............5, 17, 30 Hinojos-Mendoza v. People, --- P.3d ---, 2007 WL 2581700

(Colo. Sept. 10, 2007) ...........................12-13, 17, 29 In re Mundy, 85 A.2d 371 (N.H. 1952)...........................26 Las Vegas v. Walsh, 124 P.3d 203 (Nev. 2005) (en banc),

cert. denied, 547 U.S. 1071 (2006) (No. 05-1052) ........13, 29 Ohio v. Roberts, 448 U.S. 56 (1980).............................4 People v. Geier, 161 P.3d 104 (Cal. 2007)..............10, 15, 28 Roberts v. United States, 916 A.2d 922 (D.C. 2007).............13 State v. Caulfield, 722 N.W.2d 304 (Minn. 2006)............13, 17 State v. Coombs, 821 A.2d 1030 (N.H. 2003)..................7, 24 State v. Dedman, 102 P.3d 628 (N.M. 2004)...................14-15 State v. Forte, 629 S.E.2d 137 (N.C. 2006), cert. denied,

127 S. Ct. 557 (2006) (No. 06-6282) .........................14 State v. March, 216 S.W.3d 663 (Mo. 2007)..................13, 17 Thomas v. United States, 914 A.2d 1 (D.C. 2006), cert.

denied, --- S. Ct. ---, 2007 WL 2005554 (Oct. 01, 2007) (No. 07-5053) ...........................................13, 29

United States v. Ellis, 460 F.3d 920 (CA7 2006)............14, 29

iv

United States v. Washington, 498 F.3d 225 (CA4 2007)........16-17 STATUTES AND RULES:

N.H. Rev. Stat. § 265-A:2 (formerly § 265:82)...................6 N.H. Rev. Stat. § 265-A:2(I) (formerly § 265:82(I)).............8 N.H. Rev. Stat. § 265-A:5(IV) (formerly § 265:85(IV))..........26 N.H. Rev. Stat. § 265-A:12(I) (formerly § 265:90(I))............7 N.H. Rev. Stat. § 265-A:12(IV) (formerly § 265:90(IV)) ....................................................6-7, 23-24 N.H. Rev. Stat. § 265-A:18 (formerly § 265:82-b)................6 Fed. R. Evid. 703..............................................23 Fed. R. Evid. 801..............................................16 N.H. Code Admin. R. He-P § 2202.03(b) (expired 2005)...........25 N.H. Code Admin. R. He-P § 2202.03(c) (expired 2005)...........25 N.H. Code Admin. R. He-P § 2202.03(d) (expired 2005)...........25 N.H. Code Admin. R. He-P § 2202.05(a)(2) (expired 2005)........25 N.H. Code Admin. R. He-P § 2202.09(e) (expired 2005)...........26 N.H. Code Admin. R. He-P § 2202.10(e)(2)(c) (expired 2005).....26 MISCELLANEOUS:

Admissibility of Testimony of Expert, as to Basis of His

Opinion, to Matters Otherwise Excludible as Hearsay – State Cases, 89 A.L.R.4th 456 (1991 & 2007 Supp.) ...........23

Kenneth S. Broun, McCormick on Evidence (6th practitioner

ed. 2006) ....................................................4 Craig C. Cooley, The CSI Effect: Its Impact and Potential

Concerns, 41 New Eng. L. Rev. 471 (2007) ....................21

v

Department of Justice, Federal Bureau of Investigation,

Crime in the United States 2005: Uniform Crime Reports, <http://www.fbi.gov/ucr/05cius/data/table_29.html> ..........18

Department of Justice, Project Advisory Committee,

Laboratory Proficiency Testing Program, Supplementary Report—Samples 6-10 (1976) ..................................19

Paul C. Giannelli, Ake v. Oklahoma: The Right to Expert

Assistance in a Post-Daubert, Post-DNA World, 89 Cornell L. Rev. 1305 (2004) .........................................20

Paul C. Giannelli, Expert Testimony and the Confrontation

Clause, 22 Cap. U. L. Rev. 45 (1993) .....................3, 23 Edward Imwinkelried, The Debate in the DNA Cases Over the

Foundation for the Admission of Scientific Testimony: The Importance of Human Error as a Cause of Forensic Misanalysis, 69 Wash. U. L.Q. 19 (1991) .....................20

Pamela R. Metzger, Cheating the Constitution, 59 Vand. L.

Rev. 475 (2006) ...................................3, 19-20, 22 Erin Murphy, The New Forensics: Criminal Justice, False

Certainty, and the Second Generation of Scientific Evidence, 95 Cal. L. Rev. 721 (2007) .....................18-19

Steven W. Perry, Prosecutors in State Courts, 2005,

Department of Justice, Office of Justice Programs, Bureau of Justice Statistics Bulletin, July 2006 <http://www.ojp.usdoj.gov/bjs/pub/pdf/psc05.pdf> .........20-21

Joseph L. Peterson & Matthew J. Hickman, Census of Publicly

Funded Forensic Crime Laboratories, 2002, Department of Justice, Office of Justice Programs, Bureau of Just. Statistics Bulletin, Feb. 2005 <http://www.ojp.usdoj.gov/bjs/pub/pdf/cpffcl02.pdf> ......17-21

Michael J. Saks, Model Prevention and Remedy of Erroneous

Convictions Act, 33 Ariz. St. L.J. 665 (2001) ...............22 Barry Scheck et al., Actual Innocence: Five Days to

Execution and Other Dispatches from the Wrongly Convicted (2000) ...................................................19-20

vi

Edward J. Ungvarsky, Remarks on the Use and Misuse of Forensic Science to Lead to False Convictions, 41 New Eng. L. Rev. 609 (2007) ..................................21-22

1

IN THE SUPREME COURT OF THE UNITED STATES

No. 07-______

BRIAN T. O’MALEY, PETITIONER

v.

THE STATE OF NEW HAMPSHIRE

ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF NEW HAMPSHIRE

PETITION FOR A WRIT OF CERTIORARI

Brian T. O’Maley respectfully petitions for a writ of

certiorari to review the judgment of the Supreme Court of

New Hampshire in this case.

OPINION BELOW

The precedential opinion of the Supreme Court of New

Hampshire (App., infra, 1a-22a) is reported at 932 A.2d 1.

JURISDICTION

The judgment of the Supreme Court of New Hampshire was

entered on September 5, 2007. The jurisdiction of this

Court rests on 28 U.S.C. 1257(a).

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment to the United States Constitution

provides that “[i]n all criminal prosecutions, the accused

2

shall enjoy the right * * * to be confronted with the

witnesses against him [and] to have compulsory process for

obtaining witnesses in his favor.”

STATEMENT OF THE CASE

A. Legal and Factual Background

1. The scientific testing of forensic evidence plays

a central (and often pivotal) role in millions of criminal

cases every year. To establish the presence or quantity of

an illegal substance, that a particular instrument was used

to commit a certain crime, or that a particular individual

committed a certain offense, prosecutors almost invariably

rely on forensic evidence.

Whenever the prosecution wishes to introduce the

results of testing of such evidence, it has the burden of

proof on two extremely important evidentiary issues.

First, the prosecution must establish that the forensic

evidence was properly collected and maintained prior to any

scientific testing. Second, the prosecution must establish

that the actual testing of the forensic evidence was done

properly. The prosecution bears the burden on these two

evidentiary issues for an obvious reason: the probative

value of the scientific analysis presupposes that the

individuals who collected and tested the evidence did so

properly.

3

The vast majority of jurisdictions now allow

prosecutors to introduce the results of scientific analysis

without presenting any testimony by those individuals who

collected or tested the evidence. Often this is done

through exceptions to the rule against hearsay – such as a

“business record” exception, a “public record” exception,

see, e.g., Pamela R. Metzger, Cheating the Constitution, 59

Vand. L. Rev. 475, 508 & n.164 (2006), or some other

specific statutory exception.1 In other cases, this is done

by using an expert’s prerogative to rely on, and relate to

the fact-finder, otherwise inadmissible hearsay. See,

e.g., Paul C. Giannelli, Expert Testimony and the

Confrontation Clause, 22 Cap. U. L. Rev. 45, 54-62 (1993)

(detailing use of experts as “conduits” or a “back door”

for otherwise inadmissible hearsay statements relating to

forensic analysis) [hereinafter “Giannelli, Expert

Testimony”].

All such exceptions to the rule against hearsay deny

the accused any opportunity to confront the individuals who

have collected or tested the forensic evidence that is

1 Such statutory exceptions generally relate to a certain class of offenses or to certain classes of evidence frequently subject to forensic testing. See, e.g., Metzger, supra, at 478 & n.9 (collecting specific statutory exceptions to hearsay rule for the admission of forensic analysis reports).

4

being introduced at trial to establish guilt. As a result,

the perceptions, memory, sincerity, and reliability of the

persons who carried out the collection or testing evade

cross-examination. Defendants are deprived of perhaps

their only opportunity to “cut superficially impressive

scientific evidence down to its proper size.” 1 Kenneth S.

Broun, McCormick on Evidence § 203 (6th practitioner ed.

2006) (stressing the importance of “[a]ttention to possible

infirmities in the collection and analysis of data”).

2. The Sixth Amendment to the United States

Constitution guarantees that “[i]n all criminal

prosecutions, the accused shall enjoy the right * * * to be

confronted with the witnesses against him * * *.” U.S.

Const. amend. VI. Nonetheless, prior to this Court’s

landmark decision in Crawford v. Washington, 541 U.S. 36

(2004), an unavailable declarant was shielded from

confrontation if his hearsay statement bore adequate

“indicia of reliability,” such as when it fell within a

“firmly rooted hearsay exception.” Ohio v. Roberts, 448

U.S. 56, 66 (1980). In Crawford, this Court returned Sixth

Amendment jurisprudence to the plain meaning of the

Amendment’s text, concluding that “the only indicium of

reliability sufficient to satisfy constitutional demands is

5

the one the Constitution actually prescribes:

confrontation.” 541 U.S. at 69.

Crawford prohibited the introduction of “testimonial”

evidence against a criminal defendant when a declarant is

unavailable at trial, unless the defendant had a prior

opportunity for cross-examination. Id. at 54, 68. The

Court, however, left “for another day any effort to spell

out a comprehensive definition of ‘testimonial.’” Id. at

68. As a result, courts have struggled to determine when

evidence is “testimonial” and have articulated different

analyses yielding conflicting results in identical legal

contexts.

Davis v. Washington, 126 S. Ct. 2266 (2006), resolved

only part of the “testimonial” confusion engendered by

Crawford. In Davis, this Court examined whether “excited

utterances” to law enforcement personnel during a 911 call

or at a crime scene were “testimonial.” But the Court

again declined “to produce an exhaustive classification of

all conceivable statements * * * as either testimonial or

nontestimonial.” Id. at 2273.

This case poses ideal facts upon which to resolve the

meaning of “testimonial” with respect to a near-routine

part of criminal trials: the use of forensic evidence by

the prosecution. Specifically, this case presents the

6

Court with the opportunity to articulate a test for

determining to what extent, if any, hearsay statements

relating to two elements of forensic proof – (1) the

collection and chain of custody of forensic evidence and

(2) the testing of forensic evidence – are “testimonial,”

such that the failure to present them through live

testimony violates the Confrontation Clause.

B. Procedural History

1. Petitioner was convicted of DUI because his blood

alcohol concentration (BAC) was above the legal limit.

App., infra, 1a-2a; see N.H. Rev. Stat. §§ 265-A:2

(formerly § 265:82), 265-A:18 (formerly § 265:82-b). To

establish petitioner’s guilt, the State offered into

evidence at trial two sets of hearsay statements relevant

here.

a. Statements Regarding Evidence Collection. To

show that a sample of petitioner’s blood “was

taken * * * according to the procedures prescribed in the

rules adopted by the * * * department of safety,” the State

sought the admission of a blood sample collection form

(hereinafter, “Blood Collection Form”) completed and signed

7

by the medical technician who drew petitioner’s blood.2

N.H. Rev. Stat. § 265-A:12(IV) (formerly § 265:90(IV)).

Instead of having the medical technician testify at

petitioner’s trial, the State moved for the form’s

admission during the testimony of the arresting police

officer. Tr. 44-45. Petitioner objected, arguing that the

form was “testimonial” under Crawford and could only be

admitted if the State called the technician who actually

drew petitioner’s blood. Tr. 45-47. Although the State

acknowledged that petitioner “makes a very good Crawford

argument,” id. at 51, the trial court denied petitioner’s

objection without explanation and admitted the Blood

Collection Form into evidence, id. at 55.3

b. Statements Regarding Evidence Testing. To show

that petitioner’s BAC was above the legal limit, the State

2 The form is reproduced at App., infra, 24. 3 Under New Hampshire law,

[a] copy of the appropriate form filled out and signed by the person who took the sample for the alcohol concentration test * * * shall be admissible evidence that the sample was taken by such person at the stated time on the stated date according to the procedures prescribed in the rules adopted by * * * the department of safety.

N.H. Rev. Stat. § 265-A:12(IV) (formerly § 265:90(V)) (emphasis added); see also State v. Coombs, 821 A.2d 1030, 1031 (N.H. 2003) (noting that the then-§ 265:90 “creates an exception to the rule against hearsay”).

8

sought to elicit the results of its forensic laboratory’s

testing of petitioner’s blood (hereinafter, the “Blood

Analysis”).4 Instead of having the technician who conducted

the Blood Analysis testify at petitioner’s trial, the State

sought to introduce the Blood Analysis results through the

testimony of Dr. Michael Wagner, the laboratory’s assistant

director, who certified – but did not perform – the Blood

Analysis. See, e.g., N.H. S. Ct. Br. 4 (Ms. “Blais tested

the sample * * * and determined the defendant’s [BAC] had

been .14. Dr. Michael Wagner * * * reviewed Blais’s work

and certified the results.”); Tr. 68 (noting that

petitioner’s blood sample “was actually tested by * * *

Robin Sweeney Blais”).

Petitioner objected, arguing that because Dr. Wagner

was “not the actual testing scientist,” his testimony about

the Blood Analysis results “clearly call[s] into question

Crawford.” Id. at 68. Although the State acknowledged

that other courts were not permitting such individuals to

testify, the State asserted that under § 265-A:12(I)

(formerly § 265:90(I)), it was “only required to bring the

4 N.H. Rev. Stat. § 265-A:2(I) (formerly § 265:82(I)) provides that a person is “under the influence of intoxicating liquor” if he has “an alcohol concentration of 0.08 or more or in the case of a person under the age of 21, 0.02 or more.”

9

certifying scientist” to testify. Id. at 70. The trial

court accepted the State’s argument and denied petitioner’s

objection without explanation. See ibid. As a result, Dr.

Wagner was permitted to testify that petitioner’s BAC “was

0.14 grams per one hundred milliliters or ‘a .14.’” App.,

infra, 2a; see also Tr. 76.

2. By a vote of 3 to 2, a divided New Hampshire

Supreme Court affirmed the trial court’s holding that

neither the Blood Collection Form nor the results of the

Blood Analysis were “testimonial” for purposes of the

federal5 Confrontation Clause. App., infra, 1a-15a (Maj.

Op.).

Surveying case law from other jurisdictions, the

majority noted that “in the wake of Crawford,” state and

federal courts around the country have articulated

dramatically different tests for resolving, and have

reached conflicting answers to, the Question Presented.

Id. at 9a. The majority observed that one group of courts

has “adopted a bright line test,” under which certain

evidence “– fingerprint analysis, autopsy reports, serology

reports, drug analysis reports, DNA reports – [that] is

prepared for possible use at a criminal trial * * * is

5 See App., infra, 5a (expressly declining to resolve this case under the New Hampshire Constitution); see also infra, pg. 27.

10

testimonial and inadmissible unless the conditions for its

admission, outlined in Crawford, have been met.” Ibid.

(collecting cases; citation omitted). In contrast, the

majority noted, a second group of courts has “adopted a

different bright line test,” under which “laboratory

reports and the like are not testimonial” when covered by

an exception to the hearsay rule – e.g., a business records

exception. Ibid. (collecting cases). The majority

criticized both bright line tests as “rest[ing] upon a

misinterpretation of Crawford” and adopted neither. Ibid.

Instead, the majority turned to a third solution

articulated in People v. Geier, 161 P.3d 104 (Cal. 2007).

See id. at 10a-11a. In that case, the California Supreme

Court held that a statement “is testimonial if (1) it is

made to a law enforcement officer or by or to a law

enforcement agent and (2) describes a past fact related to

criminal activity for (3) possible use at a later trial.”

Geier, 161 P.3d at 138. The majority adopted the Geier

test but not before adding two further requirements for a

statement to be “testimonial:” (4) that the statement be

“prepared in a manner resembling ex parte examination” and

(5) that the statement be “accusatory.” App., infra, 12a.

Applying this test to the evidence at issue, the majority

held that neither the Blood Collection Form nor the results

11

of the Blood Analysis was “testimonial” because, in its

view, they represented “contemporaneous recordation[s] of

observable events” and were “neutral,” insofar as they

“could have led to either incriminatory or exculpatory

results.” Id. at 13a-14a.

Justice Duggan, joined by Chief Justice Broderick,

dissented. See id. at 15a-22a. In their view, the

majority’s test was unfaithful to Crawford; by “focus[ing]

upon the content of the statements at issue * * * not * * *

upon the process through which the statements were made,”

the majority disinterred the very foundational reliability

analysis that Crawford eschewed. Id. at 18a. The better

test for whether a statement relating to the collection or

testing of forensic evidence is “testimonial,” the dissent

explained, asks if (1) the statement was made “at the

request” of law enforcement and (2) the declarant would

“reasonably have believed” that the statement “would be

used” by law enforcement “to secure a conviction at a

subsequent trial.” Id. at 20a. The dissent concluded by

specifically lamenting that this Court had not yet

“modifie[d] or clarifie[d] Crawford, or chart[ed] a

different course.” Id. at 22a.

3. This petition followed.

12

REASONS FOR GRANTING THE PETITION

A. There Is a Widely Acknowledged, Deep, and Intractable

Three-Way Split Over the Question Presented

As expressly recognized by both the majority and

dissent below, there is a deep and intractable three-way

split over the Question Presented by this case: whether

hearsay statements regarding the collection or testing of

forensic evidence made in anticipation of prosecution are

“testimonial” and, therefore, subject to the Confrontation

Clause demands enunciated in Crawford. See App., infra,

9a-12a (Maj. Op.) (characterizing the conflict); 19a-21a

(Duggan, J., dissenting) (collecting cases).

1. One group of courts has answered the Question

Presented with a categorical “yes.” In the words of the

New Hampshire Supreme Court majority, “some courts have

adopted a bright line test [regarding] the availability of

the out-of-court statements for later [use at] trial and

concluded that” documents relating to or reporting the

results of such forensic tests are “testimonial” because

they are created for later use in prosecution. App.,

infra, 9a. Such a test has been adopted by five state

courts of last resort. See Hinojos-Mendoza v. People, ---

P.3d ---, 2007 WL 2581700, at *4-*5 (Colo. Sept. 10, 2007)

(laboratory report identifying confiscated substance as

13

cocaine); Roberts v. United States, 916 A.2d 922, 938-39

(D.C. 2007) (DNA analysis by FBI forensic scientists

offered through testimony of prosecution’s DNA expert);6

State v. March, 216 S.W.3d 663, 665-67 (Mo. 2007)

(laboratory report identifying confiscated substance as

cocaine base);7 State v. Caulfield, 722 N.W.2d 304, 308-10

(Minn. 2006) (state forensic examiner’s report identifying

confiscated substance as cocaine); Las Vegas v. Walsh, 124

P.3d 203, 207-08 (Nev. 2005) (en banc) (affidavit from

nurse who drew blood for later blood alcohol analysis),

cert. denied, 547 U.S. 1071 (2006) (No. 05-1052).

2. A second group of courts has answered the

Question Presented with a categorical “no.” As explained

by the New Hampshire Supreme Court majority, “[o]ther

courts have developed a different bright line test,”

concluding that “laboratory reports and the like are not

6 Roberts followed and expanded upon the District of Columbia Court of Appeals’ prior decision in Thomas v. United States, 914 A.2d 1, 11-20 (D.C. 2006), cert. denied, --- S. Ct. ---, 2007 WL 2005554 (Oct. 01, 2007) (No. 07-5053), which held that a report containing both chain-of-custody information and the results of a chemical analysis identifying a confiscated substance as cocaine was “testimonial.” 7 The State of Missouri petitioned for certiorari in March, No. 06-1699. While the petition was pending, the defendant pled guilty to the underlying offense and mooted the case. Accordingly, this Court dismissed the petition under Rule 46 on October 5, 2007.

14

testimonial” because they constitute business or public

records. App., infra, 9a. (emphasis added). This test has

been adopted by three state courts of last resort and one

federal court of appeals. See United States v. Ellis, 460

F.3d 920, 926-27 (CA7 2006) (report containing chain-of-

custody information and results of police-directed blood

test establishing presence of drugs in defendant’s system);

Commonwealth v. Carter, --- A.2d ---, 2007 WL 3015622, at

*6 (Pa. Oct. 17, 2007) (laboratory report identifying

confiscated substance as cocaine); State v. Forte, 629

S.E.2d 137, 142-44 (N.C. 2006) (DNA analysis), cert.

denied, 127 S. Ct. 557 (2006) (No. 06-6282); Commonwealth

v. Verde, 827 N.E.2d 701, 705-06 (Mass. 2005) (certificates

of analysis showing drug weight).

3. A final group of courts, including the New

Hampshire Supreme Court in this case, has refused to use a

categorical approach to resolve the Question Presented.

These courts, however, have struggled to articulate uniform

criteria for resolving the Question Presented. For

example, in State v. Dedman, 102 P.3d 628, 636 (N.M. 2004),

the New Mexico Supreme Court held that BAC results

“prepared for trial” by a non-testifying “government

officer” were not “testimonial” because they were “not

15

investigative or prosecutorial” but instead “routine, non-

adversarial, and made to ensure an accurate measurement.”

The California Supreme Court relied on similar factors

in Geier, 161 P.3d at 139, when it held that DNA test

results generated by non-testifying laboratory technicians

were not “testimonial.” A statement is “testimonial,” the

court explained, “if (1) it is made to a law enforcement

officer or by or to a law enforcement agent and

(2) describes a past fact related to criminal activity for

(3) possible use at a later trial.” Id. at 138. Because,

in its view, the DNA test results “constitute[d] a

contemporaneous recordation of observable events rather

than the documentation of past events,” the court held that

the second prong of its test was not satisfied. Id. at

139.

The New Hampshire Supreme Court majority in this case

found “the opinion * * * in Geier instructive,” App.,

infra, 10a, but as discussed supra, pg. 10, engrafted onto

the Geier standard two additional requirements for a

statement relating to the collection or analysis of

forensic evidence to be “testimonial,” see App., infra,

12a. Specifically, a statement will be “testimonial” only

if, in addition to satisfying the Geier factors, it is

“prepared in a manner resembling ex parte examination” and

16

“accusatory.” Id. at 12. Because, in its view, the Blood

Collection Form and results of the Blood Analysis

represented “contemporaneous recordation[s] of observable

events” and were “neutral” (insofar as they “could have led

to either incriminatory or exculpatory results”), the

majority held that its test was not satisfied. Id. at 13a-

14a.

Finally, in United States v. Washington, 498 F.3d 225,

228-31 (CA4 2007), a divided Fourth Circuit held that blood

toxicology results generated by a chromatograph operated by

non-testifying technicians did not implicate Crawford at

all. In that case, the court reasoned that the toxicology

results were not “statements” – much less, hearsay

statements – under the Federal Rules of Evidence because

they were generated not by “a person” but by the

chromatograph. Id. at 229-30 (discussing Rule 801’s

repeated references to “a person”). Alternatively, the

majority held that even if the results were hearsay

statements, they were not “testimonial.” Id. at 232. The

majority so held because, in its view, the results (1)

“relate[d] solely to the present condition of the blood,

without making any links to the past,” and (2) “did not

look forward to ‘later criminal prosecution,’” since “the

machine could tell no difference between blood analyzed for

17

health-care purposes and blood analyzed for law enforcement

purposes.” Ibid. (emphasis in original).

3. This stark and widely acknowledged three-way

split is entrenched and cannot be resolved absent

intervention by this Court. Courts have had ample time to

digest Crawford and have continued to reach conflicting

decisions even after Davis. Most recent opinions merely

acknowledge the split of authority and follow one of the

preexisting formulations. See, e.g., App., infra, 9a-12a

(surveying conflict in authority and choosing sides);

Hinojos-Mendoza, 2007 WL 2581700 at *4 (same); March, 216

S.W.3d at 667 n.2 (same); Caulfield, 722 N.W.2d at 309-10

(same). This Court’s intervention is sorely needed.

B. The Conflict Over the Question Presented Is Untenable

The profound conflict among state courts of last

resort and the federal courts of appeals over the Question

Presented is untenable for at least three reasons.

1. The scientific analysis of forensic evidence

plays a central (and often pivotal) role in millions of

criminal trials every year. See, e.g., Joseph L. Peterson

& Matthew J. Hickman, Census of Publicly Funded Forensic

Crime Laboratories, 2002, Department of Justice, Office of

Justice Programs, Bureau of Just. Statistics Bulletin, Feb.

2005, at 5 <http://www.ojp.usdoj.gov/bjs/pub/pdf/cpffcl02.

18

pdf> (reporting that “[p]ublicly funded crime laboratories

in 2002 received 2,695,269 new cases”). Such analysis is

used in prosecutions seeking to establish the presence or

quantity of an illegal substance,8 that a particular

instrument was used to commit a certain crime, or that a

particular individual committed a certain offense. See,

e.g., Erin Murphy, The New Forensics: Criminal Justice,

False Certainty, and the Second Generation of Scientific

Evidence, 95 Cal. L. Rev. 721, 722 (2007) (observing that

“traditional forensic evidence, such as handwriting,

firearms, bullet, bite, toolmark and fingerprint

identification, has long played a role in the criminal

justice system”).

Future prosecutions promise to rely even more on

scientific analysis as technology continues to advance.

See ibid. (observing that “a new generation of forensic

sciences capable of uncovering and inculpating criminal

offenders * * * such as DNA typing, data mining, location

tracking, and biometric technologies * * * will surely

stake a central and indispensable role in the future

8 There are many such prosecutions. See Department of Justice, Federal Bureau of Investigation, Crime in the United States 2005: Uniform Crime Reports, <http://www.fbi.gov/ucr/05cius/data/table_29.html> (reporting 1,371,919 DUI arrests and 1,846,351 “drug-abuse violation[]” arrests nationwide in 2005).

19

administration of criminal justice”). Prosecutors’

increasingly frequent reliance on DNA testing is simply a

preview of what is likely to come. See, e.g., Peterson &

Hickman, supra, at 10 (reporting the increased demand for

DNA analysis “in recent years” because of “expanding

casework”).

2. The inability of criminal defendants to cross-

examine individuals who collect, handle, and test relevant

forensic evidence substantially undermines the integrity of

the criminal justice system.

a. Put simply, the scientific analysis that is

performed in prosecutorial crime laboratories is often

inaccurate. See, e.g., Department of Justice, Project

Advisory Committee, Laboratory Proficiency Testing Program,

Supplementary Report—Samples 6-10, at 3 (1976) (reporting

that thirty percent of state forensic examiners asked to

test a substance for the presence of cocaine rendered

incorrect results); Metzger, supra, at 491-500 (detailing

numerous examples of erroneous convictions based on

discredited forensics); Barry Scheck et al., Actual

Innocence: Five Days to Execution and Other Dispatches from

the Wrongly Convicted 246 (2000) (reporting that “tainted

or fraudulent science” contributes to perhaps as much as

20

one third of wrongful convictions).9 Even the FBI’s most

sophisticated laboratories have been plagued by startling

error rates. See Paul C. Giannelli, Ake v. Oklahoma: The

Right to Expert Assistance in a Post-Daubert, Post-DNA

World, 89 Cornell L. Rev. 1305, 1320 (2004) (describing a

1997 report by the Department of Justice Inspector

General).

Human error in the collection, handling, and analysis

of such evidence is one of the most common causes of

erroneous laboratory results. See generally Edward

Imwinkelried, The Debate in the DNA Cases Over the

Foundation for the Admission of Scientific Testimony: The

Importance of Human Error as a Cause of Forensic

Misanalysis, 69 Wash. U. L.Q. 19 (1991). In fact, twelve

percent of state prosecutors’ offices have reported

inconclusive DNA results because of the improper collection

of evidence. See Steven W. Perry, Prosecutors in State

Courts, 2005, Department of Justice, Office of Justice

Programs, Bureau of Justice Statistics Bulletin, July 2006,

9 A substantial number of such laboratories do not even follow any standardized procedures. See, e.g., Metzger, supra, at 494 (noting that “of the 400-500 laboratories conducting forensic examinations for criminal trials, only 283 are accredited”); Peterson & Hickman, supra, at 10 (reporting that only “[s]eventy-one percent of publicly funded laboratories in 2002 were accredited by some type of professional organization”).

21

at 8 <http://www.ojp.usdoj.gov/bjs/pub/pdf/psc05.pdf>.

Such human errors are likely to increase, as public

facilities have begun to outsource their analyses, creating

a potentially long and complicated chain of custody for

some evidence. See Peterson & Hickman, supra, at 10 (“[T]o

address the problem of rising caseloads * * * [f]orty-one

percent of publicly funded laboratories * * * outsourc[ed]

one or more types of forensic services in 2002”).

b. In addition to engaging in careless or negligent

practices, forensic examiners who work for state or federal

law enforcement departments are prone to prosecutorial

bias, which may in turn lead to poor judgment. See, e.g.,

Craig C. Cooley, The CSI Effect: Its Impact and Potential

Concerns, 41 New Eng. L. Rev. 471, 490 (2007) (concluding

that, “because most publicly funded crime labs are annexed

with law enforcement or prosecutorial agencies,” pressure

by prosecutors or investigators may affect the tests that

analysts conduct or the results they report); Edward J.

Ungvarsky, Remarks on the Use and Misuse of Forensic

Science to Lead to False Convictions, 41 New Eng. L. Rev.

609, 618 (2007) (reporting the “natural impulse” for a

forensic technician, “when given both a complicated crime-

scene profile and a suspect profile,” to “combine her

analysis of the samples and conclude that the suspect’s

22

profile can be observed in the crime-scene evidence”).

Such prosecutorial bias sometimes leads to outright

misconduct. See Metzger, supra, at 495 & n.83 (discussing

recent scandals in Baltimore, Phoenix, and Houston

involving the falsification of evidence in those cities’

crime laboratories); Michael J. Saks, Model Prevention and

Remedy of Erroneous Convictions Act, 33 Ariz. St. L.J. 665,

674 (2001) (noting that thirty-one percent of overturned

convictions have resulted in part from deception, sometimes

on the part of the technicians running the forensic tests).

3. The vast majority of jurisdictions (including New

Hampshire) have statutes that allow prosecutors to

introduce the results of scientific analysis of forensic

evidence without the testimony of those individuals who

collected, handled, or tested the forensic evidence. See

Metzger, supra, at 478 & n.9 (collecting statutes from

forty-five jurisdictions).10 “When properly invoked, these

statutes enable the prosecution to prove, through * * *

hearsay * * * both the chain of custody and the ‘truth’ of

the forensic tester’s conclusions.” Id. at 479. Even in

10 Numerous states also allow the admission of forensic

certificates as hearsay evidence to proffer “the results of DNA tests, microscopic hair analyses, fingerprint identifications, coroners’ reports, ballistics tests, and a wide range of other tests conducted by a crime laboratory.” Metzger, supra, at 479; see also id. at 479 n.12 (collecting citations).

23

the absence of such a statute, nearly every jurisdiction

allows expert witnesses to testify on direct examination to

the content of hearsay matters – such as the results of

forensic analysis – on which the experts’ opinions are at

least partially based. See Fed. R. Evid. 703 (providing

that “otherwise inadmissible” “facts or data” on which an

expert relies may “be disclosed” to the fact-finder if

“their probative value * * * substantially outweighs their

prejudicial effect”); Admissibility of Testimony of Expert,

as to Basis of His Opinion, to Matters Otherwise Excludible

as Hearsay – State Cases, 89 A.L.R.4th 456 § 3 (1991 & 2007

Supp.) (collecting cases); see also, e.g., Giannelli,

Expert Testimony, supra, at 54-62.

In every such case, the ability of the accused to

cross-examine the individuals who collected, handled, and

tested the relevant forensic evidence turns entirely on the

resolution of the Question Presented. This case directly

presents two extremely common examples of the introduction

of the scientific analysis of forensic evidence without the

testimony of those individuals who collected, handled, or

tested the evidence.

a. To show that a sample of petitioner’s blood “was

taken * * * according to the procedures prescribed in the

rules adopted by the * * * department of safety,” the State

24

sought the admission of the Blood Collection Form (App.,

infra, 24a) completed and signed by the medical technician

who drew petitioner’s blood. N.H. Rev. Stat. § 265-

A:12(IV) (formerly § 265:90(IV)).

Instead of having the medical technician testify at

petitioner’s trial, the State moved for the form’s

admission during the testimony of the arresting police

officer. Tr. 44-45. The state did so under a New

Hampshire statute which provides that

[a] copy of the appropriate form filled out and signed by the person who took the sample for the alcohol concentration test * * * shall be admissible evidence that the sample was taken by such person at the stated time on the stated date according to the procedures prescribed in the rules adopted by * * * the department of safety.

N.H. Rev. Stat. § 265-A:12(IV) (formerly § 265:90(IV))

(emphasis added); see also Coombs, 821 A.2d at 1031 (noting

that the then-§ 265:90 “creates an exception to the rule

against hearsay”).

This exception to the rule against hearsay denied

petitioner the opportunity to cross-examine the individual

who drew his blood about, inter alia, whether his blood

sample was – as the Blood Collection Form asserted –

25

collected “in accordance” with the Department of Safety’s

applicable rules, App., infra, 24.11

b. To show that petitioner’s BAC was above the legal

limit, the State sought to elicit the results of its

forensic laboratory’s Blood Analysis. In lieu of

presenting live testimony by the laboratory technician who

actually tested petitioner’s blood, the State presented the

results of petitioner’s BAC test through the testimony of

Dr. Wagner, who certified – but did not perform – the Blood

11 Of course, cross-examination could have addressed the truthfulness of the technician’s assertion on the Blood Collection Form that “[t]he area from which [petitioner’s] blood was taken was cleansed with a non-alcoholic cleanser” and that the sample was otherwise collected “in accordance” with the Department of Safety’s applicable rules. App., infra, 24a.

Perhaps more importantly, however, cross-examination could have addressed whether the collection procedure employed by the medical technician satisfied the precise requirements of the New Hampshire Department of Safety. At all times relevant here, the Department of Safety required: (1) that a non-alcoholic cleanser be used to clean the area of skin from which blood will be drawn; (2) that needles and syringes used to draw blood “be pre-sterilized and shall not be cleansed;” (3) that the container used to collect a blood sample contain specified amounts of sodium fluoride and potassium oxalate to preserve the sample and prevent coagulation; and (4) that once filled, the container “be inverted several times to mix the preservative and anticoagulant.” N.H. Code Admin. R. He-P §§ 2202.03(b)-(d), 2202.05(a)(2) (expired 2005; reauthorized in part and renumbered at N.H. Code Admin. R. Saf-C §§ 6402.02(b), 6402.03(a)(2)). [The expired regulations are reproduced at App., infra, 26a-35a.] Only cross-examination of the medical technician who actually drew petitioner’s blood would allow petitioner to verify compliance with these comprehensive requirements.

26

Analysis. Because the trial court allowed Dr. Wagner to

testify as an expert, see Tr. 65, and because settled New

Hampshire precedent (like that of many other jurisdictions)

allows “an expert [to] give an opinion * * * based in part

on hearsay,” e.g., In re Mundy, 85 A.2d 371, 373 (N.H.

1952) (citations omitted), Dr. Wagner was allowed to

testify as to the results of the Blood Analysis, see Tr.

76.

Consequently, petitioner was denied the opportunity to

cross-examine the individual who analyzed his blood about,

inter alia, whether the testing of his blood was “performed

in accordance with the methods prescribed by the * * *

department of safety.” N.H. Rev. Stat. § 265-A:5(IV)

(formerly § 265:85(IV)).12 As the trial transcript makes

plain, Dr. Wagner (because he was not the actual analyst of

petitioner’s blood) was unable to establish compliance with

all of those procedures in this case. See Tr. 79-82

(acknowledging no knowledge of whether petitioner’s blood

12 Those requirements are comprehensive. For example, in addition to some of the requirements detailed supra note 11, the Department of Safety also required: (1) that any blood sample “be placed in a secure refrigerator * * * no greater than 46°F or 8°C” “until the time of analysis” and (2) that any blood sample “[b]e allowed to equilibriate to room temperature prior to analysis.” N.H. Code Admin. R. He-P §§ 2202.09(e), 2202.10(e)(2)(c) (expired 2005; reauthorized in part and renumbered at N.H. Code Admin. R. Saf-C § 6402.08(c)).

27

sample contained required anticoagulant and preservative),

83-85 (acknowledging no knowledge of laboratory

refrigerator temperature on relevant date), 86-87

(acknowledging no knowledge of whether laboratory analyst

caused petitioner’s blood sample to equilibrate before

testing).

C. This Case Is an Ideal Vehicle for Resolving the

Question Presented.

For two significant reasons, this case provides an

ideal vehicle for this Court to resolve the Question

Presented.

1. Unlike many other Confrontation Clause cases, the

Question Presented was unquestionably outcome determinative

in this case.

a. The New Hampshire Supreme Court made clear that

no state-law issue was presented. Although petitioner

argued below that his rights under the state constitution

were also violated, the New Hampshire Supreme Court

expressly held that petitioner “failed to demonstrate that

he raised a state constitutional issue in the trial court”

and, therefore, “decline[d] to consider his State

Confrontation Clause argument and limit[ed] [its] review to

his claims under the Federal Confrontation Clause.” App.,

infra, 5a.

28

b. Before proceeding to the Question Presented, the

New Hampshire Supreme Court rejected the State’s argument

that “any error in admitting the blood sample collection

form and [Dr. Wagner’s] testimony about the blood test

results constituted harmless error.” App., infra, 4a.

According to the court, “[t]he alternative evidence of the

defendant’s guilt was not so overwhelming that the blood

sample collection form and blood test results were merely

cumulative or inconsequential.” Id. at 5a.13

2. This case provides the Court a desirably unique

opportunity to resolve the Question Presented as it applies

to both the collection and testing of forensic evidence.

As explained throughout this petition, an overwhelming

number of criminal cases in the 21st century involve

forensic proof. In all such cases, the evidentiary

soundness of the forensic proof necessarily depends on the

prosecution establishing two things: that the subject

evidence was collected properly and that it was tested

13 It appears that the defendant in Geier, supra, may soon petition this Court for certiorari. See Geier v. California, No. 07A-230 (pet. for cert. due Nov. 15, 2007). Unlike this case, the California Supreme Court held in Geier, 161 P.3d at 140-41, that any violation of the defendant’s Confrontation Clause rights was harmless beyond a reasonable doubt. Accordingly, this Court’s resolution of any Confrontation Clause challenge in Geier would not be outcome determinative. This case is, therefore, a superior vehicle for resolving the Question Presented.

29

properly. This case involves separate hearsay statements

about both the collection and testing of forensic evidence.

As such, it provides this Court with an opportunity to

address conclusively the scope of the Confrontation Clause

where forensic evidence is concerned.

Many cases address the Question Presented, but only

with regard to hearsay statements about the collection or

chain of custody of forensic evidence. See, e.g., Walsh,

124 P.3d at 207-08. Many other cases address the Question

Presented, but only with regard to hearsay statements about

the testing of forensic evidence. See, e.g., Hinojos-

Mendoza, 2007 WL 2581700 at *4-*5; Verde, 827 N.E.2d at

705-06.14 Those cases that address the Question Presented

with regard to hearsay statements about both the collection

and testing of forensic evidence often do not involve

separate statements. See, e.g., Ellis, 460 F.3d at 926-27

(involving a single document that contained information

regarding collection and testing); Thomas, 914 A.2d at 11-

20 (same).

The attractiveness of addressing the meaning of

“testimonial” with respect to the separate statements in

14 A petition for a writ of certiorari was recently filed in one such case. See Commonwealth v. Melendez-Diaz, No. 05-P-1213, 2007 WL 2189152 (Mass. App. July 31, 2007), pet. for cert. filed Oct. 26, 2007 (No. 07-591).

30

this case is illustrated by Davis, supra. Davis involved

two consolidated cases, each asking whether certain excited

utterances to law enforcement were testimonial. One case

involved a victim’s hearsay statement to a 911 operator

while in the midst of a domestic disturbance. See Davis,

126 S. Ct. at 2270-71. The other involved a victim’s in

person statement to a police officer shortly after a

domestic disturbance had ended. See id. at 2272.

The Court’s ability to consider the two cases’ subtle

differences no doubt facilitated the Court’s articulation

of its clear and comprehensive answer to the question

presented:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Id. at 2273-74. The separate statements at issue in this

case – unlike the singular statements in most other cases

seeking resolution of the Question Presented – will

similarly facilitate the Court’s ability to articulate a

clear and comprehensive answer to the Question Presented

here.

31

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

______________________ PETER K. STRIS JEAN-CLAUDE ANDRÉ RADHA PATHAK Counsel of Record MARTIN H. PRITIKIN SARAH E. ANDRÉ Whittier Law School Ivey, Smith & Ramirez 3333 Harbor Blvd. 2602 Cardiff Ave. Costa Mesa, CA 92626 Los Angeles, CA 90034 (714) 444-4141 (310) 558-0932 SHAUN P. MARTIN PAUL J. GARRITY University of San Diego 14 Londonderry Rd. School of Law Londonderry, NH 03053 5998 Alcalá Park (603) 548-5298 San Diego, CA 92110 (619) 260-2347 BRENDAN S. MAHER 5707 Swiss Ave. Dallas, TX 75214 (214) 736-4524 November 2007